Tribes win case against government
April 19, 2005
By Brodie Farquhar, Star-Tribune correspondent
Lander, Wyoming - Wind River Indian Reservation tribes could realize
about $6.5 million in federal payments after the U.S. Supreme Court on
Monday declined to consider the government's appeal of a lower-court
ruling in favor of the tribes.
Earlier this month, the Bush administration argued the Northern
Arapaho and Eastern Shoshone tribes waited too long to sue the
Interior Department over federal management of minerals on the
reservation dating back nearly 60 years.
Without comment, justices let stand the lower-court ruling that
allowed most of the claims by the Wyoming tribes. The tribes allege
the federal government mismanaged oil, gas, timber and grazing
royalties from 1946 to 1973.
An attorney for the tribes, speaking on condition of anonymity,
estimated an ultimate payment of $6.5 million to the tribes from the
The refusal of the Supreme Court to
reopen the case, the tribal attorney said, secures a $12 million
payment received last year, as well as additional interest, at a rate
yet to be determined.
"My general estimate is that the tribes will see a payment of $6
million, by settlement or negotiation, within the next six
months," the attorney said.
The $6 million anticipated payment arises from an accounting of oil
and gas royalties owed the tribes, but not enforced by the federal
government, from 1973 to 2000, he said.
In addition, and as a separate issue, the Supreme Court's denial of
the federal appeal sets the stage for an additional $550,000 payment
to the tribes, based on an earlier settlement about sand and gravel
royalties, he said.
The attorney readily acknowledged that compared to a potential federal
liability of $200 billion in a class-action trust management lawsuit (Cobell
v. Norton), this victory for the Wind River tribes is relatively
"It is good for the tribes," he said, but was uncertain
whether it will have any implications for the larger lawsuit,
potentially affecting 500,000 American Indians.
Ordinarily, fraud claims have a six-year time limit for filing suit.
But a federal statute allows the tribes to postpone that deadline if
the government hasn't provided an accounting of the trust funds set up
on their behalf. The Interior Department has not done that yet.
At issue was the scope of the federal law allowing the delayed claims
if they concern "losses to or mismanagement of trust funds."
The tribes argued that should include alleged mismanagement of natural
resources, such as failure to negotiate adequate prices for sand and
gravel leases, that they say devalued their trust fund. The government
disagreed and argued they should be limited to mismanagement of funds
actually contained in the trust accounts.
In a ruling last year, the U.S. Court of Appeals for the Federal
Circuit staked a middle ground. It allowed claims involving the actual
trust funds as well as alleged losses due to the government's failure
to collect payments under sand and gravel payments. But it rejected
the tribes' claims of losses due to inadequate negotiation of lease
The Justice Department had urged the Supreme Court to hear the appeal,
arguing that the lower ruling "will revive long-moribund claims
and substantially increase the potential liability and litigation
burdens of the United States."
In 1887, Congress created a trust fund for Indians managed by the
Copyright 2005, Casper Star-Tribune.
Additional researched, recommended
Indian Trust - Cobell v. Norton: What
we can expect for 2005 and beyond
By Elouise Cobell, Lead Plaintiff
Blackfeet Reservation Development Fund
125 North Public Square
Browning, MT 59417
My fellow trust beneficiaries,
As we move into 2005, we have much to reflect upon, as Indian trust
beneficiaries and as plaintiffs in the Cobell v. Norton lawsuit. With
two recent U.S. Court of Appeals decisions, a nine-month attempt at
mediation, and a presidential election, it was quite a busy year. We
expect the coming year to be just as eventful, with considerable
progress in our efforts to force the United States government to account
for more than a century of income that has been collected by the
government from property we own -- including income from leases,
grazing, mineral rights, and the outright sale of our land.
On two successive Fridays in early December, the United States Court of
Appeals for the D.C. Circuit issued decisions that resoundingly affirmed
the authority of U.S. District Judge Royce C. Lamberth to preside over
our case. Some have tried to paint these decisions as a setback, but
nothing could be further from the truth. Although the appeals court
decisions overturned several of Judge Lamberth’s procedural rulings,
we were extremely pleased that the court otherwise affirmed many of the
central principles of our case.
For example: after almost two years of the U.S. government arguing that
Judge Lamberth has no further jurisdiction over the case, the Court of
Appeals once and for all rejected this notion. The government had argued
that Judge Lamberth is some sort of "rogue" judge, forcing his
will upon the U.S. Department of the Interior, and that he has no
authority to reform the grossly mismanaged Individual Indian Trust. The
government lost that argument, and they will be unable to make it again.
In fact, in the first of the two decisions, the appeals court
definitively stated that the district court retains “substantial
latitude” to fashion an equitable remedy, because the lawsuit is
“both an Indian case and a trust case” in which the trustees have
“egregiously breached their fiduciary duties.” The court also upheld
Judge Lamberth's authority to grant relief to Indian Trust beneficiaries
by identifying breaches and management deficiencies and "ordering
specific relief for those breaches."
And in the most significant aspect of the decisions, the appeals court
clearly recognized we have the right to full interest on all funds held
by the government in trust. This resolves a longstanding dispute in this
case, and makes clear the ultimate resolution or settlement will be in
the tens of billions of dollars.
This particular ruling is critical to our case. You may have heard the
government claim that its review of certain beneficiary accounts found
little money missing. This notion is laughable. The government’s
so-called “analysis” was based upon [its] false, misleading and
incomplete trust fund data. No self-respecting accountant would take
this finding seriously. Under their system of analysis, Enron's books
would have balanced!
Make no mistake, we will make the U.S. government prove its numbers, and
provide a real accounting, with interest, on money that has been taken
from us over the course of more than a century.
Finally, the Court of Appeals also ruled that the legislation enacted
last year to stop further proceedings in Cobell v. Norton (the so-called
Midnight Rider) was constitutional only because of its temporary nature.
This is an explicit endorsement of the underlying validity of
judicial authority over this case. There are clear limitations on the
ability of Congress to interfere with this case.
Regarding the presidential election: I would like to thank all of the
Native people that came out in unprecedented numbers in the election to
show that the Native vote counts! It was inspiring to go around the
country and see my fellow Indians registering to vote and looking
forward to Election Day with renewed hope. With the Bush re-election and
Interior Secretary Gale Norton’s decision to remain for a second term,
we pledge to build on the positive momentum of the past year and demand
public accountability from our elected officials.
I know this has been a long fight, a seemingly endless round of court
hearings and appeals. But we all must remember that with each new
district court decision and each new Court of Appeals ruling, we
establish new rights for American Indians -- rights that have been
denied native people since this country was founded. Rights other
Americans routinely take for granted. But our work is far from over.
We must stay the course. If we do, I am confident that the government
will someday honor its 100-year-old fiduciary duty. The courts agree,
and they have now ruled that the district court has the authority to
compel Secretary Gale Norton and her colleagues if they continue to
flout their trust duties.
We must stand united and refuse to give up until we achieve justice
for each and every one of our 500,000 beneficiaries in this case. I
pledge to you that I will not give up this fight. The government has
taken our money and mismanaged it for more than a century. We only want
what is ours -- as American citizens, we cannot be deprived of the land
and resources we own.
I refuse to sit by as our fellow beneficiaries -- our mothers,
grandparents, sisters and loved ones -- die without receiving what
is legally theirs. We are encouraged that the U.S. Court of Appeals
ruled that Interior must fix what they admit is a seriously broken trust
management system, and that Judge Lamberth retains considerable
authority over all aspects of this case. We believe that these appeals
court decisions open up an entirely new phase of this litigation, with
full discovery to determine specific breaches of trust. We look forward
to heading back to district court so that we may finally get a
resolution of the case -- and the justice our friends and relatives so
/s/ Elouise Cobell
Copyright 2005, Blackfeet Reservation Development Fund, Inc.
Cobell v. Norton - "Sham"
Certification Process Used to Okay Defective Computer Systems
April 12, 2005
Contact: Bill McAllister 703-385-6996
Washington, D.C. - The Interior Department used "a sham
certification and accreditation process" to operate defective
computer systems [that] house or access individual Indian Trust
accounts, plaintiffs told a federal judge.
Citing the Interior Department's own records, lawyers in the Cobell
lawsuit against Interior Secretary Gale Norton have asked U.S. District
Judge Royce Lamberth to reimpose a temporary restraining order, shutting
down all trust systems.
The temporary restraining order and a preliminary injunction against the
department are essential to protect 500,000 trust account beneficiaries
from further irreparable harm, the petition notes.
"Because it is indisputable that the 'poor state of network
security' creates an imminent risk of irreparable injury...plaintiffs
request that this court disconnect from the Internet and shut down each
information technology system which houses or access individual Indian
trust data to protect plaintiffs against further injury to their
interests...," the petition reads.
It cited a study by the Interior Department's own inspector general who
reported that "given the poor state of network security...and the
the weak access controls we encountered on many systems, it is safe to
say that we could have easily compromised the confidentiality, integrity
and availability of the identified Indian Trust data residing on such
Judge Lamberth has twice directed cutoffs of Interior's computer systems
to protect trust data. But each time the department has reopened those
systems, contending that they were safe from computer hackers.
The new filing by the Cobell lawyers reports that Interior's chief
information officer, Hord Tipton, has said in a deposition that Interior
officials did not even consider the risk to Indian trust data when they
reviewed the systems.
Additional details of how the department reconnected its computers using
the sham accreditation process are available in the filing for the
temporary restraining order at www.indiantrust.com.
Copyright 2005, Blackfeet Reservation Development Fund, Inc.
Government Communications with
There is no restriction on oral (spoken) communications between the
government and Individual Indian trust beneficiaries, including those
who wish to sell, exchange, convey or convert their Trust land. The U.S.
District Court for the District of Columbia confirmed this on October
22, 2004; however, written communications from the BIA [Bureau of Indian
Affairs, a Department of Interior agency] and other bureaus or
offices within the Interior Department concerning the sale, exchange,
conveyance, and conversion of Trust land (and the historical accounting)
must include a Notice prescribed by the Court.
Case No. 1:96CV01285